Hermosillo v. Cnty. of Orange

562 F.Supp.3d 802

Xavier HERMOSILLO, et al.

v.COUNTY OF ORANGE, et al.

Case No. SACV 20-1387 JVS (ADSx)

United States District Court, C.D. California.

Filed September 29, 2021

Angel Carrazco, Carrazco Law APC, Humberto M. Guizar, Guizar Henderson and Carrazco LLP, Tustin, CA, Christian M. Contreras, Kent Matthew Henderson, Guizar Henderson and Carrazco LLP, Montebello, CA, for Xavier Hermosillo, Olga Hermosillo.

Jesse Keenon Cox, Lukas Ralph Kramer, Marlena R. Mlynarska, S. Frank Harrell, Norman J. Watkins, Lynberg and Watkins APC, Orange, CA, for County of Orange, Deputy Renzi, Deputy Faour, Deputy Kocher.

Proceedings: [IN CHAMBERS] Order Regarding Motion for Default Judgment

James V. Selna, United States District Court Judge

Defendants County of Orange, Deputy Vincent Renzi ("Renzi"), Deputy Moni Faour ("Faour"), and Deputy Kenneth Kocher ("Kocher") (collectively, "Defendants") filed a motion for summary judgment. Mot., Dkt. No. 45. Plaintiffs Xavier Hermosillo ("Xavier") and Olga Hermosillo ("Olga") (collectively, "Plaintiffs") opposed the motion. Opp'n. Dkt. No. 50. Defendants replied. Reply, Dkt. No. 54.

For the foregoing reasons, the Court GRANTS in part and DENIES in part the motion for summary judgment. The Court GRANTS summary judgment with respect to all claims against Deputy Kocher. The Court GRANTS summary judgment for all defendants on the Fourteenth Amendment Claim, Xavier's NIED claim, and the Bane Act Claim. The Court DENIES summary judgment with respect to all other claims.

I. BACKGROUND

This case concerns the tragic death of Luis Hermosillo ("Luis"). Luis struggled with mental health issues, including bipolar and schizophrenia. His family members called for police assistance in response to his erratic behavior that they feared could become dangerous. Within ten seconds of encountering Luis, one Deputy tased him, and another Deputy shot him four times, leaving him dead in the backyard of his own home. The parties agree about significant portions of the sequence of events leading up to that point, but there are key disputes over material facts. The Court begins by reviewing the undisputed facts before turning to the conflicting narratives.

A. Undisputed Facts

On the evening of August 21, 2019, Olga Hermosillo called 9-1-1 and asked for police assistance at her residence in Stanton, California. Statement of Uncontroverted Facts ("SUF"), Dkt. No. 47, ¶ 1. Olga told the dispatcher that her son, Luis, was "bipolar," "drunk," "throwing everything," had a "big knife" and that she was afraid for her other son, Xavier. SUF ¶¶ 3-5. Deputy Renzi and Deputy Jaime Castaneda were initially assigned the call for service, and Deputies Faour and Kocher elected to respond given the nature of the call. SUF ¶¶ 11-12. Deputies Faour, Renzi, and Kocher all arrived at the residence wearing their Sheriff's Department uniforms. SUF ¶¶ 17-18.

When the Deputies arrived at the residence, Christina Hermosillo ("Christina"), Xavier's wife, told Deputy Faour to "hurry" and that her "husband was in the backyard" and that she did not "want him hurt." SUF ¶ 19. Within earshot of Deputy Renzi, Christina also told Deputy Faour that Luis was "bipolar," "schizophrenic," "drunk," and had just poured gasoline in the yard. SUF ¶ 20. As the Deputies proceeded through the residence towards the backyard, Deputy Faour heard loud voices in the backyard and smelled gasoline, so he requested the fire department to stage nearby in case a fire was started. SUF ¶¶ 21, 23.

Xavier was in the backyard at the time the Deputies arrived. SUF ¶ 28. After walking through the house, Deputy Faour entered the backyard with his taser drawn and stepped to his left into a grassy area. SUF ¶ 24. Deputy Renzi immediately followed, and stood just outside of the doorway with his firearm drawn. SUF ¶ 25. Deputy Kocher then entered the residence and proceeded to the backyard where he also drew his firearm and stood behind Deputy Renzi. SUF ¶ 27.

B. Disputed Facts

Beyond this point, the parties disagree about key events. The Court recounts the narrative here, highlighting those points of contention. Because this is a motion for summary judgment, at this stage the Court must make all inferences in favor of the Plaintiffs because they are the non-moving party. Within seconds of entering the backyard, Deputies Faour and Renzi saw Luis, who matched the physical description of the subject described by dispatch, exit a shed in the backyard. SUF ¶¶ 29-30.

The Plaintiffs introduce facts showing that Luis was walking with his hands up saying "what, what." Xavier Hermosillo Deposition ("Hermosillo Depo."), Dkt. No. 50-3, at 111-12. Luis then stopped and remained stationary with his hands in the air. Id. at 116. The Defendants description of events is that Luis was moving quickly towards them across the backyard while saying "what do you want, what do you want." SUF ¶¶ 30, 31, 33. The parties agree that Deputy Faour issued multiple commands to Luis to "stop" while pointing his taser at him, and that Deputy Renzi did not issue any verbal commands. SUF ¶¶ 34-35.

According to the Plaintiffs, Luis remained stationary with his hands in the air after the commands to stop were given. Hermosillo Depo. at 124. According to the Deputies, Luis continued walking towards them. SUF ¶ 36. Deputy Faour then deployed his taser, with at least one of the darts striking Luis in the chest. SUF ¶¶ 36-37; Response to Defendant's SUF, Dkt. No. 50-1, ¶¶ 28-30.

The critical sequence of events that follows is described differently by the two parties. The Plaintiffs introduce testimony that after Luis was hit with the taser, he reached into his back pocket and pulled out a knife. Hermosillo Depo. at 126. Luis pulled the knife out and moved it in a clockwise motion in front of him, wrapping the taser wires around the knife. Id. at 129. From the time that the taser darts landed on Luis, he took a single step backward, then remained stationary as he pulled out the knife and wrapped it around the wires. Id. at 133.

The Defendants characterize Luis’ reaction to being struck with the taser as "waving a knife in front of himself." SUF ¶ 40. They do not dispute that taser wires wrapped around the knife. Response to Plaintiff's, Dkt. No. 53, SUF ¶ 32. They also assert that Luis was advancing closer towards the deputies with the knife after being struck with the taser darts. SUF ¶ 42.

Seconds after Deputy Faour fired his taser, Deputy Renzi shot Luis four times. Response to Plaintiffs’ SUF ¶ 36. Plaintiffs’ highlight the fact that the autopsy showed that two of the shots entered through Luis’ back. Id. ¶ 60. In response, Defendants note that Xavier testified that Luis "rotated and turned" when he was shot. Id.

After being shot, Luis passed away on the scene. SUF ¶ 46. While the exact distance between Luis and the officers is not established, Luis was within 21 feet of Deputy Faour at the time that Faour used his taser, and when Deputy Renzi subsequently shot Luis. SUF ¶ 48. Xavier, who was standing near the Deputies, testified that he was twelve to thirteen feet away from Luis. Hermosillo Depo. at 112. A total of ten seconds passed between the first command from Deputy Faour telling Luis to "stop" and Deputy Renzi firing his weapon. SUF ¶ 50. Deputy Kocher did not use force against anyone in connection with the incident. SUF ¶ 53.

II. LEGAL STANDARD

Summary judgment is appropriate where the record, read in the light most favorable to the nonmovant, indicates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary adjudication, or partial summary judgment "upon all or any part of [a] claim," is appropriate where there is no genuine dispute as to any material fact regarding that portion of the claim. Fed. R. Civ. P. 56(a) ; see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (" Rule 56 authorizes a summary adjudication that will often fall short of a final determination, even of a single claim ....") (internal quotation marks omitted).

Material facts are those necessary to the proof or defense of a claim, and are determined by referring to substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505.¹

The moving party has the initial burden of establishing the absence of a material fact for trial. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact ..., the court may ... consider the fact undisputed." Fed. R. Civ. P. 56(e)(2). Furthermore, " Rule 56 [(a)] mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. Therefore, if the nonmovant does not make a sufficient showing to establish the elements of its claims, the Court must grant the motion.

III. DISCUSSION

A. Evidentiary Objections

As a preliminary matter, both the Defendants and the Plaintiffs submit numerous objections to the admission of certain pieces of evidence. Evidence presented at summary judgment must be admissible and have a proper foundation to be considered. Fed. R. Civ. P. 56 ; Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987). On a motion for summary judgment, a party may object that the material used to "dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). A court must rule on material...